S. C. JAIN ( 1 ) THIS appeal has been filed by Rajbir and Shiv Raj, the appellants herein challenging the Judgment and Order passed by the learned Additional Sessions Judge on 20. 8. 1991 and 27. 8. 1991 whereby the appellant No. l, Rajbir was held guilty of an offence under Section 376 I. P. C. and sentenced to seven years R. I. and to pay a fine of Rs. 500. 00 and in default of payment of fine to further undergo R. I. for three months and whereas the appellant No. 2, Shiv Raj was found guilty of an offence under Section 366/34 I. P. C. and was sentenced to undergo R. I. for three years. ( 2 ) IT appears that Shiv Raj, appellant No. 2 has already been released from jail after undergoing the sentence awarded to him and,therefore, the appeal on his behalf has not been pursued and pressed. It is only Rajbir, appellant No. l, who has pursued this appeal against his conviction and sentence. ( 3 ) IN brief, the facts of the case as are apparent from the record are that one Babita Sharma, the prosecutrix was living with her parents in H. No. 352, Mangolpur Kalan, Delhi, while Shiv Raj and his wife, Bimla were living in her neighbourhood. Rajbir, appellant No. l the brother of Shiv Raj, appellant No. 2 was living in Village Zimani, District Meerut,uttar Pradesh. As per the prosecution version, Bimla suggested Babita Sharma to marry Rajbir and accordingly Babita Sharma went to the house of Bimla on 7. 8. 1989 in the morning after informing her parents that she was going to her friend. She accompanied the appellant No. 2,shiv Raj and his wife Bimla to village Zimani. She stayed at that village for about 19 days and that she appeared before the Magistrate in Meeruti and got the marriage with Rajbir appellant No. l registered. As per the case of the prosecution, after that she slept with the appellant No. l for one night and on that night he committed sexual intercourse with her. On 27. 8. 1989 she came back to Delhi and stayed at the house of Maya Devi in Income Tax Colony, Pitampura, Delhi from where she was recovered by the police and a case was registered on the complaint of the rosecutrix on 27. 8. 1989 and on that day. On 27. 8. 1989 she came back to Delhi and stayed at the house of Maya Devi in Income Tax Colony, Pitampura, Delhi from where she was recovered by the police and a case was registered on the complaint of the rosecutrix on 27. 8. 1989 and on that day. the appellant was arrested and prosecuted. ( 4 ) RAJBIR,appellant No. l is not represented by any counsel. This appeal was sent through the Superintendent, Jail and he drew my attention towards the various facts which are apparent from record. I have also gone through the record and heard the learned State counsel. ( 5 ) IN this case, as per the report of Dr. B. B. Thukral,radiologist, the age of the prosecutrix is more than 15 years and less than 18 years. From the record it is also apparent that she did not resist or raise a hue and cry while she was taken to Village Zimani, and rather from her conduct it appears that she was a consenting party. One factor,which goes against the appellant is that as per the school leaving certificate of the prosecutrix she was less than 16 years of age on the date of the occurrence and, therefore, it has to be presumed, as correct that she was a minor at the time of the incident. ( 6 ) THE appellant has submitted that he has been in jail for the last more than 4 years and that the prosecutrix was a consenting party so much so that she did not make any complaint to the Magistrate at Meerut before whom she made a statement voluntarily at the time of her marriage with this appellant. According to the appellant, the incident is of 7. 8. 1989, whereas it is for the first time that the F. I. R. was lodged by her father on 27. 8. 1989 and this delay, in lodging the F. I. R. has not at all been explained. The appellant has submitted that keeping in view the conduct of the prosecutrix, the fact that she was of matured age and that the F. I. R. was lodged by her father after more than 20 days, he be released from jail by reducing the sentence to the period already undergone by him. The appellant has submitted that keeping in view the conduct of the prosecutrix, the fact that she was of matured age and that the F. I. R. was lodged by her father after more than 20 days, he be released from jail by reducing the sentence to the period already undergone by him. He also pointed out that he is a poor person and he could not pay the fine amount of Rs. 500. 00 and that is why he has not been able to engage any counsel for his defence and pursuing this appeal. Learned State counsel does not oppose this request of the appellant in view of the present circumstances of the case. ( 7 ) THE proviso to Section 376 [i] of I. P. C. provides that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. In this case, admittedly the prosecutrix was of matured age at the time of the said incident. She made a statement before the Magistrate at Meerut and agreed for her marriage with this appellant, Rajbir and she did not resist or raise a hue and cry while she was taken to village Zimani. This appellant has been in jail for the last more. than 4 years. Acting upon this proviso to Section 376 [1] of I. P. C. , which enables the Court to award less than 7 years imprisonment in special circumstances, I hereby reduce the sentence of this appellant to the period already undergone by him. The appellant being a very poor person, who has not been able to engage any counsel for pursuing his appeal, I also waive the sentence of fine of Rs. 500. 00 To this extent, this appeal is accepted. This appellant, Rajbir, be released forthwith from the jail, if not wanted in any other case. Ordered accordingly.